R v Willersdorf[2013] QSC 311

SUPREME COURT OF QUEENSLAND

1. McMeekin J: On 12 September 2013 Leigh Adrian Willersdorf (“the respondent”) pleaded guilty to four indictable offences and three summary offences, all connected to the use or possession of dangerous drugs in various ways. I sentenced him to three years imprisonment for possession of a dangerous drug, methylamphetamine, in a quantity exceeding two grams and lesser concurrent sentences for the remaining offences. Count 4 on the indictment, to which count the respondent pleaded guilty, was:

“That on the fourteenth day of November, 2011 at Mackay in the State of Queensland, [the respondent] had in his possession a sum of money, a quantity of chemicals, a number of plastic bags, containers and syringes and two sets of digital scales for use in connection with the commission of the crime of possessing a dangerous drug”

2. That count was brought pursuant to s 10(1)(a) of the Drugs Misuse Act 1986 which provides:

10Possessing things

(1)A person who has in his or her possession anything—

(a) for use in connection with the commission of a crime defined in this part; or

(b) that the person has used in connection with such a purpose;

is guilty of a crime.

Maximum penalty—15 years imprisonment.

3. It was an agreed fact on sentence that there was an element of commerciality, it being conceded by the defence that the respondent intended to offload or on-sell some of the drugs found in his possession. The quantity and variety of the drugs and other paraphernalia found in the respondent’s possession at the time he was apprehended strongly suggested that to be so as well.

4. On sentence the prosecution submitted that the respondent’s possession of a large sum of money, $11,779.55 in cash, at the time of his apprehension also assisted in reaching the conclusion that there was an element of commerciality involved in his possession. The defence submission was that it was not shown that the money was the proceeds of any crime.

5. Having sentenced the respondent the prosecution then applied for forfeiture of the money found as well as the various drug paraphernalia. The application in relation to the money was made pursuant to the Criminal Proceeds Confiscation Act 2002 (on occasions: “the Act”). On the making of a forfeiture order, the property the subject of the order is forfeited to the State and vests absolutely in the State: s 153 of the Act.

6. The respondent’s counsel, Mr Moore, opposed the making of the orders relating to the money.

7. Mr Moore submitted that only “tainted property” as defined could be forfeited and the definition of “tainted property” contained in s 104 of the Act was confined to offences the subject of conviction. So much is clear from s 151 of the Act which I set out below. Mr Moore then submitted that while it was a reasonable inference that the cash was potentially to be used for a future offence, indeed those were his instructions, it was not shown, and could not be shown, to have had any connection with any past offence of which the respondent had been convicted, a necessary pre-condition, he submitted, to the making of the order.

8. Section 104 provides, so far as is relevant:

104Meaning of tainted property

(1) Tainted property, for a confiscation offence, means—

(a) property used, or intended to be used, by a person in, or in connection with, the commission of the offence; or

(b) property or another benefit derived by a person from property mentioned in paragraph (a); or

(c) property or another benefit derived by a person from the commission of the offence; or

…

(2)Property mentioned in subsection (1)(a) includes property the use of which is, or the intended use of which would be, all or part of the confiscation offence.

…

9. Mr Moore’s submission concentrated on subsection 104(1)(a) and its reference to “the offence” as opposed to wording such as “an offence” or “any offence”. It followed, he submitted, that there had to be a connection between the offence charged and the money sought to be forfeited. Here, he submitted, there was no connection at all between that money found in the respondent’s possession and the offences to which he pleaded guilty, none of them involving a transaction in which he might acquire money. The money was intended for use in relation to future crimes – the acquiring of drugs to feed the respondent’s habit – and had been innocently acquired.

10. While I do not decide the point, Mr Moore’s submissions may have some force if the only convictions were to counts 1 and 2 on the indictment which related to the possession charges. Where the arguments in my view go wrong is in understanding the effect of the plea to count 4 and its interaction with s 104 of the Act.

11. It is plain that a plea of guilty to count 4 involved acceptance by the respondent that he had in his possession money “for use in connection with the commission of a crime”. The count was endorsed on the indictment as being brought under s 10(1)(a) and not (b), the latter involving some past conduct and the former including within its terms either present (as at the date averred) or contemplated conduct. That, it seems to me, is self evident from the wording of the provisions, and indeed conceded by Mr Moore. Hence if a person is caught in possession of property intended to be used in connection with a crime defined in that part of the Drugs Misuse Act then he or she is guilty of an offence.

12. Mr Moore sought to argue that while the Drugs Misuse Act might catch future intended crimes the Criminal Proceeds Confiscation Act did not. What Mr Moore’s submission, I think, overlooks is subsection 104(2) of the latter Act. The money found in the respondent’s possession, which was the subject of count 4, falls squarely within the wording of s 104(2) – “property the use of which is, or the intended use of which would be, all or part of the confiscation offence” (my emphasis).

13. Quite apart from the plain meaning of s 104(2), it is evident from a number of provisions that the Act is intended to catch property that might be intended to be used in the commission of a crime in the future.

14. First, such an approach will meet the main object of the Act set out in s 4(1) which provides:

4Objects

(1)The main object of this Act is to remove the financial gain and increase the financial loss associated with illegal activity, whether or not a particular person is convicted of an offence because of the activity.^[1]

15. Secondly, the stated purpose of these provisions includes the catching of property intended to be used in the commission of offences. So much is clear from a perusal of several of the provisions of the Act.

16. The application was brought pursuant to Chapter 3 of the Act – confiscation after conviction. Section 94 explains the purpose of the Chapter:

94Explanation of Ch 3

(1)This chapter enables proceedings to be started against a person to recover property and benefits derived from, and anything used for, or in the commission of, a confiscation offence, after the person has been charged with or convicted of the offence.

(2)It does this by enabling a court, as a preliminary step in appropriate cases, to make a restraining order preventing the property being dealt with without the court’s leave.

(3)It also empowers the court to forfeit the following property to the State—

(a) property used, or intended to be used, in or for the commission of a confiscation offence;

(b) property derived from property mentioned in paragraph (a) or from the commission of a confiscation offence.

Note—

For matters that the court is to consider in deciding whether to forfeit

property mentioned in paragraph (a), see section 151(2).

(4)In addition, it provides a mechanism for—

(a) preventing the disposal or concealment of property and benefits derived from the commission of a confiscation offence; and

(b) depriving persons who have directly or indirectly benefited from the commission of a confiscation offence of the benefits derived from the offence.

17. Section 94(3)(a) with its reference to the Court being empowered to forfeit “property used, or intended to be used, in or for the commission of a confiscation offence” suggests that the forfeiture provisions were not intended to be confined as the respondent’s submission requires.

18. The application was made pursuant to s 146 of the Act. That section empowers the Court to make a forfeiture order. The circumstances in which the Court may do so are defined in s 151 of the Act. It provides:

151Making forfeiture order

(1)The court may make a forfeiture order in relation to particular property if—

(a) a person is convicted of a confiscation offence; and

(b) the conviction is the basis for the application for the forfeiture order against the property; and

(c) the court is satisfied the property, or an interest in the property, is tainted property; and

(d) the court, having regard to subsection (2), considers it appropriate to make the order.

(2)For subsection (1)(d), the court may have regard to—

(a) any hardship that may reasonably be expected to be caused to anyone by the order; and

(b) the use that is ordinarily made, or was intended to be made, of the property; and

(c) the seriousness of the offence concerned; and

(d) anything else the court considers appropriate.

(3)The court must presume that particular property is tainted property if—

(a) at the hearing of the application, evidence is presented that the property was in the person’s possession at the time of, or immediately after, the commission of the offence concerned; and

(b) no evidence is presented tending to show that the property is not tainted property.

19. Again s 151(2)(b) and its reference to “the use that is ordinarily made, or was intended to be made, of the property” indicates that future offending conduct was very much in contemplation.  

20. Given the plea to count 4 and these textual considerations I have found it unnecessary to refer to the authorities that counsel have cited.^[2]

21. Apart from the argument about the catching of future criminal conduct there was no debate about the applicability of the Act.

22. Section 151(1) requires certain pre-conditions be met. It is not in issue that the respondent was convicted of a “confiscation offence” as defined in s 99 of the Act. Count 4 was one such offence. So the pre-condition in subparagraph (a) was met. The pre-condition in subparagraph (b) was plainly satisfied and the factors in subparagraph (d) were not the subject of any submission.

23. As to the condition in s 151(1)(c), s 151(3) is mandatory in its terms. Hence the presumption that the property is “tainted property” must follow if “the property was in the person’s possession at the time of, or immediately after, the commission of the offence concerned” unless the offender discharges the rebuttable presumption mentioned in s 151(3).

24. The subject money was found in the respondent’s possession when apprehended and in the same bag as the other drug paraphernalia. All property in the respondent’s possession then is automatically the subject of forfeiture unless the respondent discharges the onus of showing that it is not “tainted” as defined and doing so by means of “evidence”.

25. Plainly the respondent did not discharge that onus. Explanations from the Bar table supported by unsworn statements from family members as to the innocent acquisition of the money – wedding gifts, family allowance benefits and a win at the “pokies” – are, in this case, irrelevant. The concession made as to the future use of the money was sufficient to justify the confiscation order.

26. The order will be in accordance with the draft tendered which I will initial and place with the papers.